Dangerous experiments

The so-called “fourth mode” for amending the Constitution is nothing more and nothing less than a trial balloon. It is one of many; and if today a “fourth” has been proposed, we can expect a fifth, a sixth—as many as it takes. All these so-called modes should all be understood as attempts to achieve—by hook or by crook and late in the game—the ultimate ambition of the administration coalition: to deprive the public of its historic right and exclusive privilege of selecting the head of state and government of our country.

The present Constitution, unlike the 1973 and 1935 Charters that were more detailed, practically states that there are two ways to propose amendments to the Constitution (because people’s initiative is basically a dead letter). The first is by means of a constituent assembly; the second is through a Constitutional Convention. In truth, the distinction is rather artificial, for it all depends on Congress to decide whether it will itself propose the amendments to the public, or pass the task to a convention—which includes the possibility (actually proposed in the 1960s and more recently by the President’s election lawyer, Romulo Macalintal) of an appointed, not elected, Constitutional Convention.

Part of the confusion stems from a residual historical memory of the Congress under the 1935 Constitution, whose provisions on amendments required the legislature to formally convene, in joint session, for the purpose of considering amendments. The present Charter makes no such explicit requirement; indeed, considering how verbose our Constitution is, its provisions are remarkably terse: any amendment to, or revision of, the Constitution, it says, can be proposed by Congress “upon a vote of three-fourths of all its Members.” Fr. Joaquin Bernas, SJ has written in this paper how the wording of the Charter was an oversight, dating back to when the Constitutional Commission thought it was going to approve a unicameral National Assembly.

But as it turned out, the commission approved a bicameral Congress, and Bernas and many others have pointed out that in terms of proposing amendments, Congress must conform to the nature of the beast—in this case, composed of two, co-equal chambers, neither of which can fulfill the functions of Congress without the other. The political problem this raises is that, for whatever reason, the House of Representatives considers the Senate unfriendly to proposals that would abolish either the presidency as a nationally-elected chief executive who is head of government, or the Senate, or both.

The 2007 elections also left the administration with absolute dominance in the House but very mixed results in the Senate; and with senators responsible to a national constituency, it is difficult for senators to abandon their traditional role as fiscalizers of the administration of the day. So the administration has been scratching its head, trying to figure out a way that will neutralize the institutional veto power of the Senate, especially in the case of amendments.

Not to mention what was, until recently, a Supreme Court with a marked disinclination to tolerate any constitutional foolishness—for it would be to the high court that the Senate would run should the House try to railroad it out of existence.

Time, however, not only heals all wounds but can sort out even the thorniest of political problems. The composition of the Supreme Court has changed drastically from its recent heyday as the bulwark against any constitutional tinkering by the administration. The opposition in the House has been starved and its membership reduced; the Senate is bogged down in presidential campaign intramurals, and will be hard pressed to put up a united front.

Notice that administration loyalists have tried to plead for a debate to take place, as if what’s going on is some sort of harmless academic discussion. It is not; what is at stake is a go-for-broke effort that involves a dangerous experiment with the law and institutions. The underlying assumption is as bold as it is cynical: that the public no longer cares enough to seriously resist an administration riding roughshod over the separation of powers. For to continue the debate now is to provide the pretext for a plebiscite in which political machines, and not public opinion, will dictate the future government of this country.